Will getting rid of Article 62/63 really help Nawaz?

Rumor mills from Islamabad to Lahore were already indicating that the Nawaz Sharif’s ruling party, PML-N, plans to end Article 62 and 63 of the Constitution of Pakistan with the support of the Pakistan Peoples Party (PPP). These impressions were strengthened when Nawaz on Saturday, on his way towards Lahore repeatedly talked of changing “constitution” – a pledge he again repeated during his concluding speech at “Data Darbar”. But will this political move really help him?

Any constitutional change, implemented after Nawaz’s disqualification, can only be prospective; it cannot be applied retrospectively to bail out Nawaz. If Nawaz’s lawyers want to rely upon it in revision then they may have to wait for very long and it will be very controversial in terms of politics. But there are other more interesting issues to this debate.

Prime Minister Shahid Khaqan Abbasi, Nawaz’s handpicked man for the slot, had recently stated that Article 62(1) (f) of the Constitution may be scrapped with the consultation of all parties.

The religious shade was imbued in Article 62 during Zia-ul-Haq’s regime and has been the source of much debate since then

Article 62(1)(f) sets the precondition for the head of government to be “Sadiq and Ameen” (truthful and honest). This law was quoted as the basis for the disqualification of Nawaz Sharif, Abbasi’s predecessor, from holding public office in the July 28 judgment on the Panama Papers case handed down by the Supreme Court of Pakistan.

The Supreme Court’s verdict states that because Sharif failed to declare a salary accruing to him as a receivable asset in his nomination papers for the 2013 election, he could not be considered ‘truthful’ and hence was unfit to hold public office. Though its not fully clear, but the consensus is that Nawaz stands disqualified for life . One objective for Nawaz’s review petition – and strategy to get larger bench – could be to reduce this disqualification to five years; this will give him control on PMLN, which will otherwise soon start to become independent of him (many suspect that process has already started and is keeping Nawaz and his immediate family sleepless)

It is understood that a public office holder will be required to adhere to the strict principles and be honest to the public and the institutions

While talking to Geo News on 8th August, the new prime minister, Khakkan Abbassi, alluded that his government would take the initiative of removing Article 62 (1)(f), which has been criticized heavily following the verdict, by taking into confidence political parties and politicians of all hues. Rumblings of Senate Chairman, Raza Rabbani, regarding a grand political dialogue, indicate that PPP may be on board.

PPP has always been critical of Article. 62 and 63. It, along with many in civil society, have always considered these provisions as insertions and meddling of an Islamist Military dictator. PMLN in the past resisted PPP whenever it tried abolishing these constitutional provisions. Political and media debate has always considered these provisions as “Islamic”; this is mostly due to the insertions of terms like “Sadiq & Ameen” – since Muslim history remembers Prophet of Islam as being referred to as “Sadiq & Ameen”. However actual reality of these constitutional provisions might be more complex and deep rooted in concept of democracy.

“The PML-N leadership has shown resilience despite all odds and continued the democratic process in the face of conspiracies,” PM Abbasi went on to say, adding that “conspiracies were being hatched to derail the system.”

Khakkan Abbassi’s argument was based on the assumption that whatever caused harm to a democratically elected government could be construed as a “conspiracy” against Pakistan.

“Elements, who do not want Pakistan to march on the path of progress are scheming against it,” Abbasi added.

It seems as if the government is developing an argument to do away with the laws in question on the basis of their religious tint whereas such provisions are common in every liberal democratic state

Responding to these statements, Pakistan Tehreek-i-Insaf leader Shah Mehmood Qureshi, in another tv program, stated that PTI was not aware of the specifics of this initiative by PMLN and therefore would give its position once the ruling party clarifies its proposal. He mentioned that Gen. Zia had tinkered with the actual provisions.

Are political parities – like PMLN and PPP – arguing in Pakistan that public office holders will not be expected to be “honest” and “truthful” to public, legislatures and courts? This sounds like a negation not of Islam or Gen. Zia’s ambitions but the very structure of liberal democracy as the world understands it.

While Pakistani media, political parties and civil society discuss Articles 62 and Article 63 as “religious” the religious shade, terminology and content, was only imbued in Article 62 during Zia-ul-Haq’s regime and has been the source of much debate since then; however most don’t remember that constitutional provisions emphasizing “honesty and truthfulness” of public office holders always existed; Gen. Zia, Nawaz Sharif’s mentor, for his political reasons, only Islamized them; and Nawaz who inherited Zia’s political clout had to defend these.

Most public debate and perception centers around the use of terms “Sadiq and Ameen,” that were used to describe the Prophet Muhammad (P.B.U.H) by the people of Mecca, as mandatory for any leader of the government of Pakistan. Many have thus argued that no one could possibly claim to sufficiently fulfill these standards hence they are unrealistic.

Prime Minister Shahid Khaqan Abbasi recently stated that Article 62(1) (f) of the Constitution may be scrapped with the consultation of all parties

But many Pakistani laws have similar provisions; Supreme Court also relied upon Representation of People Act 1999 (ROPA) in its July 28 decision. Even otherwise in all western liberal democracies, there are similarly high standards enforced on the leader of the government, and all public office holders, who are subjected to extreme scrutiny by the media, public and opposition parties. It is understood that a public office holder will be required to adhere to the strictest possible principles and be honest to the public and the institutions. He or she is judged at an unusual standards because he or she is responsible for public funds and takes decisions in what is defined in law as “public interest”

Countries like the United States, UK, France or Israel do not have specific equivalents of Articles 62 and 63; or terms like “Sadiq and Ameen” but their courts, legislative institutions, law enforcement agencies, media and public all hold public office holders at very high levels of scrutiny. In the United States, most, if not all, official forms and documents have a bottom statement warning that any misstatement will have legal consequneces. President Nixon had to leave, in Water Gate Scandal, for obstruction of justice but the underlying charge was “not being honest and truthful”.

Are political parities – like PMLN and PPP – arguing in Pakistan that public office holders will not be expected to be “honest” and “truthful” to public, legislatures and courts? This sounds like a negation not of Islam or Gen. Zia’s ambitions but the very structure of liberal democracy as the world understands it. It will generate an interesting public debate once PMLN pushes it for legislation.

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